Following the introduction to the Scottish Parliament of the Land Reform (Scotland) Bill in June, the Rural Affairs, Climate Change and Environmental Committee (RACCE) launched a consultation period which closed on 14 August.
The responses to the consultation were many and varied, and brought to light a number of stakeholder concerns with the Bill, both in relation to practical aspects and legal issues.
Some aspects of the Bill, for example, those providing for a right to buy land for sustainable development, and the consequences of landlords failing to adhere to leasehold obligations, may be in breach of Article 1 Protocol 1 of the ECHR, by interfering with, and in some cases depriving individuals of, the peaceful enjoyment of property. Legislation which affects a person’s enjoyment of their own property must be carefully balanced between the owner’s rights and what is required by law in the public interest. Whether these aspects of the Bill have achieved that fair balance will have to be subject to further parliamentary scrutiny. This was a concern raised by the Faculty of Advocates in their written evidence on the Bill.
We have concerns over the number of delegated powers contained within the Bill (45 in total), concerns which a number of respondents to RACCE’s consultation also raised. Leaving much of the detail of how the provisions of the Bill will operate to secondary legislation means these aspects will not be subject to the same level of parliamentary scrutiny. Even when the Bill comes into force much of its application in practice will be uncertain until regulations are produced, making it very difficult for those likely to be affected by them to make adequate preparation.
Presumably in an attempt to allay such concerns, the Scottish Government has recently commented that the number of delegated powers within the Bill is not significantly different to the number contained in the Land Reform (Scotland) Act 2003 (which brought us the Community Right to Buy and the Crofting Community Right to Buy). However, given the outcome of the highly publicised case of Salvesen v Riddell, in which the Supreme Court determined that landowners’ human rights were breached by previous enactments of the then Scottish Executive, stakeholder concerns would appear to have some justification.
RACCE’s consultation received 189 responses, demonstrating the keen level of interest in land reform in Scotland. Many of the proposals received broad support, but with reservations. Certain aspects of the Bill appear relatively non-contentious, such as the provisions relating to core paths and common good land.
Key themes emerging from the responses include:
Both the Law Society of Scotland and the Royal Institute of Chartered Surveyors (RICS) commented that due to the extent and complexity of the Agricultural Holdings provisions within the Bill, these would be better dealt with in separate legislation.
We support this concern: the changes proposed to the agricultural holdings regime are significant and will affect a wide range of agricultural landowners and tenants, as well as raising succession issues.
Land Rights and Responsibilities Statement
The introduction of a Land Rights and Responsibilities Statement (LRRS) is generally supported by respondents, but the content of the LRRS is an area of concern. Respondents feel the LRRS must be clear and meaningful, and not overly burdensome on one group. The NFU is keen that the LRRS has regard for the importance of agriculture.
Many respondents felt there was a need for more information on what the LRRS should include, and without this it was difficult to predict how successful the LRRS can be.
Scottish Land Commission and Tenant Farming Commissioner
The establishment of a Scottish Land Commission (SLC) is widely supported and seen as necessary to ensure land reform objectives are met. A number of respondents called for clarity on the scope of the Commission’s work and how it will interact with other bodies.
Commissioners must have a wide range of experience including land management, housing and community and rural development.
There was generally wide support for the Tenant Farming Commissioner (TFC). Both the NFU and Scottish Tenant Farmers Association recommend that any codes of practice must be statutory with meaningful sanctions to be effective. RICS are disappointed that the TFC is not a separate office to the SLC.
The Faculty of Advocates consider that there are issues between the role of the TFC and the role of the Land Court. The Policy Memorandum issued with the Bill states that the TFC’s role is not to adjudicate disputes, but to “help resolve disagreements within the agricultural land sector”. It is accepted that there may be overlaps, but it is envisaged that any dispute involving legal issues will be referred to the Land Court for resolution.
Access to information on ownership of land
The proposed right of access to information regarding landownership in Scotland was widely supported by respondents as a step towards transparency and accountability. Some concerns were raised that the process may be overly bureaucratic, that there is a lack of information regarding what constitutes a party who is “affected by land”, and whether there would be any consequence for non-compliance of a request for information from the Keeper.
RICS commented that when, as part of wider land reform, all land in Scotland comes to be registered, all details of land ownership should be publicly available, easily accessed, and free. As part of an electronic map based system, this can be seen as an achievable goal.
Other respondents pointed out that protection of personal data is also important. In other countries access to information on public land registers is only available to those who can show a legitimate interest. It is also worth noting that the ability to see the name of the entity which holds title to the land may not in itself disclose the ultimate beneficial owner, who can still be obscured by trust arrangements and nominee structures.
Community right to buy to further sustainable development
The introduction of a community right to buy to further sustainable development has been met with mixed reactions. There was general consensus that a statutory definition of “sustainable development” will be essential. The Law Society, the NFU and Scottish Land and Estates all question the necessity of these provisions as statutory rights to buy for communities already exist, as well as compulsory purchase powers.
The recently enacted Community Empowerment (Scotland) Act 2015 also contains community right to buy provisions, which are, as yet, untested. It therefore appears premature to legislate on further right to buy powers at this time. However, Rural Housing Scotland strongly supports these proposals and sees the provisions as vital for communities securing land for affordable rural housing.
One aspect of the Bill which met with little support from stakeholder bodies was the reintroduction of sporting rates for shooting and deer forests. Scottish Land and Estates comment that these provisions fail to take account of the fact that sporting rights are only rarely operated as a business, and that similar land-based businesses continue to be exempt. The NFU flags the potentially adverse impact this would have on rural employment, tourism and small businesses. The Scottish Countryside Alliance calls for a “full economic and environmental assessment” before further decisions on sporting rates are made.
Where do we go from here?
Land reform in Scotland is a hugely emotive subject, and this Bill was never going to please everybody. A recurring theme throughout the responses was the benefit of title to all land in Scotland becoming land registered, providing certainty and transparency of ownership and supporting and encouraging investment in Scotland.
The Bill is currently at the Stage 1 evidence-gathering phase of the parliamentary process, so it still has a long journey ahead. Early next year the detailed line-by-line scrutiny of its provisions will start and there is potential for many aspects to be amended at that stage, so interested and concerned parties should continue to make representations and campaign for consideration to be given to their worries. Land reform was the subject of hot debate at the recent SNP party conference in Aberdeen. At the conference the rank and file party members voted in favour of a more robust land reform policy. While this will not necessarily affect the passage of the Bill, it is a clear indicator of the mood in general towards land reform in the party.